KARACHI: The Sindh High Court on Monday declared as illegal more than five per cent increase in the tuition fees by private schools and institutions and ordered their management to refund the excess fee within three months.
The SHC ruled that its order would apply to all students and private institutions and schools governed under the Sindh Private Educational Institutions Ordinance, 2001 and Sindh Private Educational Institutions Rules 2005.
A three-judge SHC bench, headed by Justice Aqeel Ahmed Abbasi and comprising Justices Mohammad Ali Mazhar and Ashraf Jahan, announced its judgement on a set of identical petitions filed by parents of a large number of students enrolled in various private schools across Karachi.
Govt asked to formulate uniform education policy
The parents took the plea that as per rules, private schools’ managements could not raise tuition fees by more than five per cent in an academic year, but the schools had raised the fee by more than 10pc.
Uniform education policy
The bench also directed the government to increase the education budget in the first plan and to formulate a uniform education policy for both public and private education sectors in such a manner that there should be no difference in the quality and standard of education provided by public and private schools.
Referring to a contention of the counsel for private schools regarding Article 18 of the Constitution, the bench observed that the right to carry any lawful, trade, business or profession as guaranteed under the said article was the fundamental right of every citizen, but it was not an absolute or unfettered right and subject to qualifications, regulations and reasonable restrictions as may be prescribed by the law.
“The provisions of Section 6 of the Sindh Private Educational Institutions Ordinance, 2001 and Rule 7 of the Sindh Private Educational Institutions Rules, 2005 do not suffer from any constitutional defect or legal infirmity and these provisions are intra vires to the Constitution and law,” it added.
The larger bench further ruled that at the time of registration of private schools/institutions, they were at liberty to prepare feasibility and calculate and determine the proposed fee and get its approval from the government or registering authority and they could also repeat such an exercise by revising the fee structure after every three years at the time of renewal of their registration as well.
Moreover, further opportunity has been provided to the private schools to seek yearly increase in the tuition fee up to five per cent, but subject to justification and approval of registering authority, it observed.
5pc increase termed ‘additional benefit’ for schools
The court order stated: “Such increase in the school fee up to 5 per cent is certainly an additional benefit made available to the private institution (school), however, to the disadvantage to students, as it creates an additional financial burden upon the students and their parents every year, therefore, cannot be treated as a unreasonable restriction upon the right of private institution (school) as guaranteed in terms of Article 18 and 25 of the Constitution in any manner.”
The judgement said that nothing had been placed before the bench which may suggest that the relevant sections of the Sindh Private Educational Institutions Ordinance, 2001 and Sindh Private Educational Institutions Rules, 2005 were unconstitutional or contrary to Article 18.
It maintained that the right to life including right to education was one of the fundamental rights of every citizen and under Article 25-A it had now become the duty of the state to provide free and compulsory education to all the children from five to 16 in such a manner as may be determined by law.
“However, unfortunately education sector is being neglected throughout by all the governments during last 70 years, whereas, a nominal percentage in budget is allocated to education sector, whereas, most of which either remains unutilised or the same is misappropriated by unscrupulous officials through menace of corruption,” the verdict read.
The larger bench also ruled that a lack of interest towards educating children had not only destroyed the public education sector, but also encouraged the private education sector to enter this lucrative business and it acquired the status of a high profit-earning industry in most cities of Sindh.
“The prime reason for the growth of private education institutions is that public sector has miserably failed to fulfil such constitutional commitment of providing compulsory free education or to provide quality higher education also to the children at some affordable cost to be fixed while keeping in view the prevailing economic conditions, per capita income of an individual, and the poverty level subsisting in our country for the last many decades.”
Besides increasing the education budget and formulating a uniform education policy for both public and private education sector, the bench stated that it was also needed to regulate private schools in such a manner that while permitting them to carry on the business, they must keep in mind the constitutional mandate as given under articles 18, 25, 25-A and ensure to charge a reasonable amount of tuition fee from students.
SHC’s March 5 order overruled
While overruling the March 5 SHC division bench judgement which had declared Rule 7 (3) of the Sindh Private Educational Institutions Rules, 2005 as ultra vires to Article 18, the three-judge bench declared that the judgement in question was not in conformity with the rulings of the Supreme Court and did not lay correct law on the interpretation of Article 18 as well as rule 7 (3).
Declaring the enhancement in the annual tuition fee over and above five per cent from the last fee schedule by the private institutions and schools as illegal and without any lawful authority, the bench directed the private schools/institutions to either refund the amount of tuition fee collected in excess of five per cent from the last fee schedule to the petitioners within three months or to adjust the same amount against future monthly fee of the students but not beyond the period of three months.
Published in Dawn, September 4th, 2018